Sir Nicholas approves parental orders for couple in Indian surrogacy deal

Sir Nicholas Wall, president of the Family Division, has made parental orders in favour of a couple who obtained two children by paying surrogate mothers in India, despite admitting that it was unclear how much money the surrogates received and what was covered.

The couple paid a clinic in Delhi over 2m rupees or £27,400 to arrange for surrogates to have the children for them, using the father's sperm and eggs from the same anonymous woman.

Giving judgment in In the matter of X and Y children [2011] EWHC 3147 (Fam), Sir Nicholas said that, although Mr and Mrs A had children from previous relationships, they spent five years unsuccessfully trying to have their own baby before considering surrogacy.

Mr and Mrs A explored surrogacy via a British agency but both COTS and Surrogacy UK said they would not consider couples for the next three years as there was a shortage of surrogates in this country.

'Mr and Mrs A considered surrogacy in the United States, Georgia and the Ukraine but eventually decided to use a fertility clinic in India,' Sir Nicholas said.

'The specialist there, Dr S, had worked at reputable fertility clinics in the UK and was a member of the British Fertility Association.

'Mrs A states that they also chose India for cost reasons and because they were assured by the Indian clinic that the surrogate mothers would have excellent ante-natal care.'

Sir Nicholas said the couple travelled to India in January 2010, where they met the surrogate mothers, but did not consult solicitors in the UK beforehand about the implications of an international surrogacy agreement.

He went on: 'Mrs A's statement provides a breakdown of the monies paid to the Indian clinic: a total of 2,090,196 rupees of which 1,423,196 was for medical care and 667,000 was for non-medical expenses such as legal fees and 'compensation for surrogate, coordinator and donor if applicable'. The total sum was, I was told, at today's exchange rates, £27,405.22.

'Mrs A's statement makes it clear that all the monies due to the surrogate mothers were paid direct to the clinic by Mr and Mrs A. The clinic is said to have taken responsibility for making the payments to the surrogates.'

Sir Nicholas said it remained 'unclear precisely what sums the surrogate mothers actually received and what the monies paid to them actually covered'.

Under section 54 of the Human Fertilisation and Embryology Act 2008, before granting a parental order, the court must be satisfied that 'no money or other benefit (other than for reasonably incurred expenses) had been given or received by either of the applicants'.

However, Sir Nicholas said that the child's welfare throughout its life must be the court's 'paramount consideration' when considering whether to make an order.

Counsel for Mr and Mrs A argued that they were acting in good faith, there was no attempt to defraud the authorities and the payments made were 'not so disproportionate that the granting of parental orders would be an affront to public policy'.

For the children, it was accepted that the payments made to the surrogate mothers contained an element of profit and/or financial reward and were thus not reasonable expenses.

Nevertheless, it was submitted that these payments should be retrospectively authorised by the court and that the children's welfare throughout their lives required the making of parental orders in favour of the applicants.

Sir Nicholas said he accepted these arguments and made the parental orders asked for.

He added that Mr and Mrs A were 'entirely genuine', the payments were not disproportionate and 'it is plainly in the interests of these two children that they should be brought up by Mr and Mrs A as their parents'.